Demand upon a tenant may be oral however sufficient evidence must be adduced to

Demand upon a tenant may be oral however sufficient

This preview shows page 68 - 70 out of 71 pages.

Demand upon a tenant may be oral, however, sufficient evidence must be adduced to show that there was indeed a demand. Effect of non-compliance with the demand 15 days in case of land, 5 days in case of building, lessor may now proceed against the lessee. Defense of tenancy Defendant raises the issue of tenancy and alleges that it falls under the jurisdiction of the DARAB, it would be error for the court to dismiss the complaint on that ground alone. The mere raising of the issue tenancy does not automatically divest the court of jurisdiction because, jurisdiction is determined by the allegation of the complaint.
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The Fraternal Order of UTOPIA M IKE C ANILAO , AC C ASTAÑEDA & JC P IÑON Page 69 CIVIL PROCEDURE - RIANO Where tenancy is raised as a defense, the court must conduct a preliminary hearing on the matter. If during the hearing, it is shown that tenancy is the real issue, then the court shall dismiss the case for lack of jurisdiction. Defense of ownership Does not serve to divest the inferior court of its jurisdiction. The court may resolve the issue of ownership but only under the ff conditions: a. When the issue of possession cannot be resolved without resolving the issue of ownership; and b. The issue of ownership shall be resolved only to determine the issue of possession. Such judgment would not bar an action between the same parties respecting the title. It is merely interlocutory. How to obtain possession of the premises during the pendency of the action When the action is filed, the plaintiff is not in possession of the property. To obtain possession, Sec. 15 permits the plaintiff to present a motion, within 5 days from the filing of the complaint, for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. If the judgment of the MTC is appealed, the RTC may issue a writ of mandatory injunction to restore the plaintiff in his possession, upon motion of the plaintiff within 10 days from perfection of the appeal. Damages recoverable Those corresponding to the sum justly due as arrears of rent or reasonable compensation for the use and occupation of the premises. Immediate execution of judgment To avoid injustice to a lawful possessor, and the court’s duty t o order the execution if practically ministerial. Applies only when the judgment is against the defendant. How to stay immediate execution of the judgment The defendant must take the ff: a. Perfect an appeal; b. File a supersedeas bond; and c. Deposit periodically with the RTC, during the pendency of the appeal, the adjudicated amount of rent due or the reasonable value of the use of the property. The supersedeas bond covers the monetary judgment of the lower court. It the judgment does not make any pronouncement as to the pecuniary liability of the defendant, the bond shall not be required. Attorney’s fees are not covered by the bond.
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